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BY ARTHUR S. LEONARD | A state appeals panel has ruled that the city’s Department of Education should not have fired two female teachers alleged to have engaged in sexual activity in a darkened, otherwise empty classroom one evening while a musical program was taking place elsewhere in the school.

In a pair of decisions issued on March 24, however, the New York Appellate Division’s First Department found that the teachers had engaged in conduct meriting punishment and sent the case back to the DOE for imposition of “a lesser penalty.”

The court’s opinion made nothing of the gender of the teachers.

New York appellate panel reverses arbitration ruling regarding evening incident between two teachers

The DOE responded with anger to the rulings.

“We have zero tolerance for this kind of behavior from our professionals and in our schools,” the Daily News quoted Schools Chancellor Carmen Fariña saying. “So we are pursuing all options going forward and if we have a legal basis for this we will certainly appeal.” Such an appeal would go to the state’s highest bench, the Court of Appeals.

Alini Brito was a Spanish teacher and Cindy Mauro was a French teacher, both assigned to Brooklyn’s James Madison High School. On November 20, 2009, they joined other colleagues for dinner before returning to the school to watch a music competition in the auditorium. Brito and Mauro slipped out during the performance and were later observed by a school employee in an upstairs classroom allegedly “partially undressed and engaging in what appeared to be sexually inappropriate behavior” with each other. The women contended they were not engaged in sex, saying the observer misconstrued what he saw.

The DOE, however, claimed that conduct “caused widespread negative publicity, ridicule and notoriety” to the school when somebody talked to the press, leading to widespread media reports about the incident. When the department sought to fire both teachers, their union pursued grievances on their behalf to an arbitration hearing, where their dismissals were upheld. The teachers appealed their firings to State Supreme Court.

The two trial court judges who heard the appeals came to differing conclusions. In Brito’s case, Justice Alice Schlesinger vacated the termination and the finding of misconduct, sending the case back to arbitration for a new hearing. In Mauro’s case, Justice Robert Torres enforced the arbitrator’s decision, upholding the discharge. Both decisions were appealed, and an appeals panel considered both cases together.

The panel found that Justice Schlesinger should not have ignored the hearing officer’s finding about what the evidence showed.

“Here, Supreme Court erred in substituting its judgment for that of the hearing officer,” the panel wrote. “The hearing officer’s findings of misconduct… are supported by adequate evidence. Multiple witnesses gave interlocking and closely corroborating testimony… There is no basis for disturbing the hearing officer’s credibility determinations.”

The panel also confirmed Justice Torres’ conclusion in Mauro’s case that the teachers had engaged in misconduct.

But, said the court, “the penalty of termination of employment is shockingly disproportionate to petitioner’s misconduct.” The teachers were present at the school as audience members, not in their official capacity as teachers, the panel noted, and the the incident “involved a consenting adult colleague and was not observed by any student.” Both teachers enjoyed academic tenure and had unblemished disciplinary records. Brito’s supervisor described her as “one of the best teachers she had ever worked with,” and the court noted that Mauro had “consistently satisfactory teaching ratings.”

In identical paragraphs in the two opinions, the court explained, “While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that the incident was anything but a one-time mistake. Of critical significance is that, unlike matters involving some sort of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged in inappropriate behavior with a student. Nor is there any indication in the record that petitioner’s conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

This opinion is an extraordinary example of how drastically things have changed over the last several decades. There was a time when the mere hint that a teacher was lesbian or gay would result in a discharge, back when all gay sex was condemned as criminal. What could have been seen as criminal and scandalous decades ago became the object of ridicule by some in the media in 2009 — and, indeed, at the time of these latest decisions! Now, a state appellate court says that the teachers deserve some punishment for this lapse in judgment — having taken place in an unlocked classroom while the school was hosting an evening event — but not discharge.

The teachers were both represented by Michael Valentine and Aaron Altman of the firm Altman Schochet. Valentine told the New York Law Journal that the teachers, who have spent almost five years seeking vindication, may be entitled to back pay.

One Response to Firing Too Steep a Penalty for Lesbian Classroom Sex

ludwig April 3, 2014 at 7:19 pm

When one considers that lgbt people are targets of government predators (vice squads) and when hetersexuals get caught doing the same thing—and are ignored –is there any equal true justice in the land. Several Years ago after the Supreme Court ruled in the Texas case—the city of Nashville had a pogram going targeting gay people who had sex in public parks. The predators came across some straight people doing the same thing on picnic tables and were basically ignored. In Raleigh, North Carolina; an Episcopal Priest was enticed by a predatory vice officer to have sex with him. The Priest stated that that would be ok if they went to his hotel room. When they got their the officer arrested the priest and all hell broke loose from there across several states.